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The oath of secrecy

By N.L. Rajah

If our elected representatives remind themselves that they owe their primary allegiance to the people of India they would be demanding an oath of transparency to replace the oath of secrecy.

THERE IS vigorous and new-found interest in the provisions of the Constitution relating to the oath of secrecy. The charges and rebuffs flying thick and fast between opposing political factions over the transfer of the Tamil Nadu Governor, P.S. Ramamohan Rao, are best discussed with reference to issues of political decorum, dignity and acceptable political norms. It would be unhealthy to press into service the provisions of the Constitution relating to the oath of secrecy as an applicable standard. For, the oath is a relic of the colonial era and civil liberty activists are hoping that it is on its way out.

A Minister is a bridge between the people and the Government and he owes his primary allegiance to the people who elect him. A Minister is administered two oaths when he is sworn in — the oath of office and the oath of secrecy. The oath of secrecy finds a place in the Third Schedule to the Constitution.

A Minister in the Central Government at the time of taking office swears that "I will not communicate or reveal directly or indirectly to any person or persons any matter which shall be brought under my consideration or shall become known to me as a Minister for the Union except as may be required for the due discharge of my duties as such Minister." A Minister in the State Government takes a similar oath with appropriate variations.

The above provisions and the provisions of the Official Secrets Act may be helpful to a colonial regime to subjugate its subjects. But they have no place in a system that has recently taken pride in notifying and bringing into operation the Freedom of Information Act 2002.

The oath of secrecy cannot co-exist with the Freedom of Information Act. The only reason why the Freedom of Information Act did not repeal the oath of secrecy provision in the Constitution is because an enacted statutory provision cannot repeal a constitutional provision. But the spadework for the repeal by a constitutional amendment has already been done, with the National Commission to Review the Working of the Constitution recommending it.

he Commission, in para 109 of its recommendation, states: "Right to Information should be guaranteed and needs to be given real substance. In this regard, Government must assume a major responsibility and mobilize skills to ensure flow of information to citizens. T

he traditional insistence on secrecy has to be discarded. In fact we should have an oath of transparency in place of an Oath of Secrecy."

The Supreme Court has added strength to these observations by holding that requirement to disclose information by the Government arose from every citizen's fundamental right to information, which flows from the right to free speech and expression. The sudden demand for the application of the oath of secrecy arising as a consequence of recent political developments will seriously undermine the effort to repeal it.

An important test of good governance is people's well-being. However, the best test of good governance is the level to which the system encourages self-government. Self-government will remain an illusory dream if the right to information is not guaranteed, provided and protected. An oath of secrecy seriously damages this guarantee. A regime of secrecy is buttressed and strengthened by a multitude of administrative bottlenecks.

Adding strength to this are legal hurdles such as clauses that expressly forbid the disclosure of information. Strangely the justification for such clauses are "public interest" claims. Such clauses insulate the Government and its action from public scrutiny. On account of such clauses, knowledge of something that is wrong and that the public ought to know may be withheld on grounds of the oath of secrecy. That is not the way it should be.

There is currently a movement among conscientious government servants worldwide to form "truth telling coalitions," and demand for protection under whistle blowers protection legislation. It is amazing that our elected representatives should now be demanding the enforcement of the oath of secrecy. If our elected representatives remind themselves that they owe their primary allegiance to the people of India they would be demanding an oath of transparency to replace the oath of secrecy.

True, at times, consideration of the country's integrity and sovereignty may clothe a Minister or public servant with sufficient justification not to disclose information. But save such situations there is hardly any piece of information over which a Government can claim proprietary right.

"Open Government is a contradiction. You can be open or have a Government," says Sir Humphrey Appleby in the celebrated serial "Yes Minister." Our governments quite tragically keep reminding us that this state of affairs is like an ugly stain that refuses to go away.

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